Document Fragment View

Matching Fragments

40. The defendants have examined two witnesses, one is Prabhakar Shetty, who has identified the executant before the Sub-Registrar. Defendants have also relied upon the evidence of the other witness i.e, Gangaiah. It has emerged in the evidence that the said Venkatesh is also relative of the beneficiary under the Will - Ex.D5. The independent witnesses are DWs.2 and 3.

41. Now, let this Court consider the evidence of DWs.2 and 3. On perusal of the evidence of DWs.2 and 3, it discloses that they have categorically admitted that they do not know the contents of the Will - Ex.D5. It is further elicited in the cross-examination of DW.3 that after affixing the signature to the said document, himself and witness Venkatesh came out of the Sub-Registrar's office and also they had no knowledge as to whether the said Will was registered or not. It is elicited in the cross-examination of DW.3 that in his presence, the executant, Sri Thammaiah, did not sign the Will and further DW.3, who is the attesting witness, has admitted that he was not having any acquaintance with the executant. He has further admitted that he was called to come and sign the Will in the Sub- Registrar's office and accordingly, he came and signed the same. He was not having any acquaintance with attesting witness, Venkatesh. DWs.1 to 4 have stated that in the office of the Sub-Registrar, beneficiary, Yogish Govinda Raju and also his parents were present at the time of executing the Will. It is pertinent to note that DW.1 in her cross-examination though she has stated that Smt. Rangamma was residing along with the executant for a week, she has categorically admitted that Smt. Rangamma was having only one son and claims that he was residing in a rented house, but in page No.12 of the evidence i.e., in her cross-examination, she has volunteered that plaintiffs are running the factory and they are in possession of the suit schedule property. DW.1 tried to give answer that the executant was staying along with them, but from the contents of the Will of the year 1981, it is clear that the executant was staying along with his daughter, Smt. Rangamma. It is also an admitted fact that in the said Will, the executant has given equal share in his property to all his children. DW.1 has also admitted in her cross- examination that the executant, Thammaiah, was showing equal love towards all his four children. DW.1 has further admitted that the remaining two daughters were also enquiring about the health of the executant and visiting him. DW.1 has admitted that she along with her husband, Pillanna, and her son was present at the time of execution of Ex.D5. She did not know as to where the Will - Ex.D5 was got prepared and who prepared it, but only claims that DWs.2 and 3 have signed as witnesses to the said Will. It is pertinent to note that DW.1 has categorically admitted that the executant, Sri Thammaiah, while writing the Will, Ex.D5, was having the same love and affection towards all his daughters as he had towards his son. DW.1 has also admitted that the executant had suffered paralysis in the year 1974 itself.

42. It is important to consider the evidence of the witnesses who have been examined to prove the execution of the Will - Ex.D5. DW.2 has stated that he went to Sub- Registrar's office on 30.06.1993 at about 2:30 p.m. and by that time, already Will was got prepared by the executant. DW.2 has claimed that Thammaiah had not suffered paralysis. He has further admitted that in the Will, which was read over to him, there was no mention of the fact that Thammaiah had suffered paralytic stroke. Though DW.1 admitted that Thammaiah was suffering from paralysis in the year 1974, DW.2 - witness was not in a position to say exactly about the paralysis suffered by Thammaiah. DW.3 is the attesting witness to the Will - Ex.D5. Though he claimed that he has signed the Will in the presence of the executant, Sri Thimmaiah, he has stated that he did not know as to whether Thammaiah had suffered paralysis or not. However, he claimed that it was mentioned in the Will that Thammaiah had suffered paralysis, but he did not know as to when Thammaiah suffered paralysis.

45. In the case on hand, it has emerged in the evidence that the executant was staying along with Smt. Rangamma, who is one of the daughters of the executant till her death and thereafter, the executant was taken to the house of defendant No.1. It has emerged in the evidence that the beneficiary's parents were also present at the time of execution of the Will. Both DWs.2 and 3, identifying witness and the attesting witness were not aware of the contents of Ex.D5. It is also pertinent to note that in the evidence of DW.3, it is clear that he was not having any acquaintance with the executant and only he has signed the said document in the office of the Sub- Registrar. It is also important to note that it has emerged in the evidence that the executant was having similar love and affection towards his son and daughters. No doubt in Ex.D5, Thammaiah has stated the reason for executing the Will as beneficiary had taken care of him. In the case on hand, it has to be noted that the executant had suffered paralysis in the year 1974 itself and no material was placed before the Court below to show that Thammaiah was taken care by the beneficiary and his parents after the paralysis attack.

46. Though they claim that they have taken care of Thammaiah, it is evident from the records that deceased Smt. Rangamma was taking care of the executant till her death and she passed away on 13.02.1993. It is pertinent to note that the Will - Ex.D5 came into existence on 30.06.1993 within a span of three to four months from the date (13.02.1993) of death of Smt. Rangamma and when the first defendant took the executant to his house. Apart from that, the attesting witnesses have admitted that they did not know the contents of Ex.D5. Both DWs.2 and 3 have gone to the extent of saying that even they were not aware of the paralysis suffered by the executant. They stated that they had identified the signature of the executant at the time of registration of the Will - Ex.D5. They have not spoken anything about the status of mind of the executant and paralytic stroke suffered by him. However, in evidence they have stated that the executant was having sound state of mind. The same cannot be accepted. Hence, it is clear that the very execution of the Will in favour of the beneficiary i.e., grandson of Thammaiah is shrouded with suspicious circumstances. It is pertinent to note that in the earlier Will of 1981, the executant, Thammaiah, had bequeathed the suit property equally to all his children including his daughters and no material is placed on record to show as to what made Thammaiah to change his intention and to execute another Will bequeathing the suit property in favour of his grandson. It is evident from the records that the executant was having same love and affection towards all his children and there was no special circumstance to execute the Will in favour of his only grandson, that too within a period of three to four months after he went to the house of the beneficiary i.e., defendant No.1. The Court below has also discussed that there was no reason for Thammaiah to disinherit his legal heirs other than his grandson. It is categorically admitted by DW.1 that the other two daughters of Thammaiah were visiting her house and enquiring about the health of the executant. When such being the case, what made the executant to execute the Will - Ex.D5 in favour of his grandson is also shrouded with suspicious circumstances.